Thanks to Opinio Juris for hosting this symposium.I read the blog regularly so know to expect a lively and interesting discussion.

My article addresses the international legal rules for detaining “non-battlefield terrorism suspects”—i.e., suspected terrorists not captured on a conventional battlefield or in the theater of combat.Despite the extensive literature on the rules that govern the “war on terror,” and on the treatment of detainees in particular, there continues to be significant confusion about when, and under what conditions, a state may lawfully detain non-battlefield terrorism suspects.On those questions, two broad strands of thought have emerged.One asserts that the law of armed conflict governs to permit extended detention with minimal legal process; the other claims that human-rights law applies to prohibit detention unless accompanied by the ordinary criminal process. Neither strand tracks international practice.Rather than uniformly adopting one approach or the other—the armed conflict approach or an exclusively criminal one—international actors have been groping for new options. International practice demonstrates that states (and particularly western democracies that take seriously their human rights obligations but also face a real threat from transnational terrorism) perceive an occasional but serious need to detain non-battlefield suspects outside the criminal process.In the absence of a clear legal framework for satisfying that need, these states have resorted to a variety of ad hoc or uncontrolled measures.

Based on a review of that practice, I argue that the global fight against terrorism should not be characterized as an armed conflict for purposes of application of a detention regime under the law of armed conflict, but that the reflexive rejoinder—if the law of armed conflict does not apply, then the criminal law must—is mistaken. The criminal law is an important tool for detaining terrorism suspects, but human rights law also recognizes that, even in peacetime, states may detain persons who threaten their security outside the criminal process and instead through calibrated systems of administrative detention.Moreover, administrative detention may better balance the liberty and security interests at stake in the context of particular terrorism suspects.In order for administrative detention to fill the void for a sustainable detention regime, however, its parameters must be better defined.My article thus begins the project of refining the international law on administrative detention, as it applies in the fight against terrorism.The purpose of this project is twofold: to inhibit states from detaining unnecessarily or through uncontrolled and ad hoc measures; and to enable states to detain based on a lawful template that satisfies their legitimate security needs.

5 Responses

Assuming, as the author does, that one perceives a need for an administrative detention system apart from the detentions already authorized by the laws of war, and apart from the (limited) forms of civil administrative detention/commitment and criminal pre-trial detention that are already available — it seems to me that there are still a whole host of questions in dire need of resolution and the devil will truly be in the details in terms of whether or not the system would be lawful (under both international human rights law and U.S. constitutional law) and whether or not the system would be desirable as a policy matter. Just one among the many questions is whether the executive branch alone would be entrusted with administering the administrative detention system, or whether the judiciary (e.g., a new “national security court” along the Goldsmith/Katyal model in the U.S. context) would have a large participatory role. To that end, I would be curious to know where the author stands on this question of the allocation of institutional competencies. Within the U.S. context, where would an ideal system of administrative detentions be situated among the existing constellation of Art. II and III tribunals and courts?

11.24.2008
at 1:36 pm EST JS

I am interested in the tryptic of Administrative detention which is defined as:

(1) detention prior to filing criminal charges;

(2) detention pending deportation; and

(3) “pure” securitybased detention premised only on the interest in containing the security threat.

Would the author let us know whether in her regime (1) and (2) would be taken away from current courts and put into a special court for terrorism?

With regard to (3) the emphasis is on US, UK and, to a lesser extent, India and Israel. Given the strong condemnation of these regimes of detention, does this suggest that these states are complying with international human rights law or in fact, in violation of international human rights law in these settings?

Finally, would the (3) again be in a special terrorist court with special procedures that are different from those in the ordinary criminal courts?

I am concerned that the inclusion of (1) and (2) in the administrative detention definitoin used by the author is a stretching of the definition of administrative detention to encompass things that come out of normal criminal process – so as to make it palatable. (3) seems the administrative detention which is suggested and outside the criminal process and that is also the most troubling.

Finally, why is the author focused on jihadists? Wouldn’t this security regime not be jihadi focus only but security threat focused so that it could encompass other types of terrorists as defined by the relevant state?

Best,
Ben

11.24.2008
at 11:13 pm EST Benjamin Davis

Ben,

Thanks for your comments and questions.

It seems to me that, if states are detaining terrorism suspects for longer than usual periods on the pretense of future criminal or immigration proceedings, they are engaged in security-based administrative detention–although, as you pick up, not in what I term “pure” security-based detention. The understanding that such detentions are “administrative” is consistent with longstanding international practice. That they are “security-based” is evident from their stated purpose.

The law already requires that any detention be subject to judicial review, and I advocate for robust judicial review. I think it is possible for states to satisfy that standard through the use of specialized courts, although I do not advocate for them.

As for state practice, I think we must look deeper than the “strong condemnation” by human rights NGOs. The Human Rights Committee established under the ICCPR has reviewed the detention schemes in India, Israel, and at Guantanamo Bay; but it has not rejected outright the legality of security-based administrative detention in those circumstances. Instead, it has criticized the detaining states for not establishing better controls. Those criticisms are relevant to the task of refining the law on administrative detention, and I incorporate them into my proposal.

As for your last question, I focus on jihadi terrorist groups because, as I explain in the piece, the fight against them has attributes that may justify the use of administrative detention, even if such detention cannot be justified against other kinds of terrorist groups.

Monica Hakimi

11.25.2008
at 8:10 am EST Monica Hakimi

Thank you for your response. I want to focus on the pretense (1) and (2) and the (3). Aren’t they really all the same. Pretense (1) and (2) are exploiting those systems to do a (3). I guess the pretense (1) and (2) detainee has the benefit that – as they are not the only persons in that system – they will benefit from the improvement of controls in those systems. There are terrible problems in (1) and (2) for which some mobilization happens to improve them that would inure to the benefit of the humane treatment of all persons. A series of expose articles in the Washington Post on (2) detentions has highlighted how terrible is the American version.

The pretense (1) and (2) also can avail themselves of the structural protections in place. For example, you cite the French 4 year rule. I do believe that the ECHR slapped France down on overly long (1) cases – at least one where a person languished for an awful long time before being brought to trial. France was found to be violative. Those kinds of pressures would seem to reduce the length of detention overall with the effect for pretense (1) and (2) of opening the possibility of removal of the system unless there was sufficient evidence of the crime or effort to deport them to a place that would not torture.

On the (3) settings, the countervailing pressures I suggest above are not available as the persons in this arena are segregated and they represent a threat to state security (as perceived by the state) that is in direct confrontation with the state. The sbires of the state in that setting are seeking vindicate the state’s security interest in its purest form.

However, it would seem that the problem of controls you note in the criticism is not a thing of “we can improve them”. The problem of controls is in the nature of a pure vindication of the state interest setting. I have the privilege of having been passed recently a 1990 article of Professor Anthony d’Amato on torture pointing out the deviationist view and the entailment view of torture by state actors. In the entailment view, the state torturer is doing the dirty work of the state – not as a pleasue but as a servitor.

Similarly, in the (3) detention setting, the servitors of the state are interested in intelligence and incapacitation and my question is why that regime by definition will be one of weakened controls. I think you and others simply ask too much of the state in its self-policing.

As to the Human Rights Commission types who have not rejected the theoretical possibility of administrative detention, it seems to me that all that means is that representatives of states in the Human Rights Commission are persons who are close to the security state enough that they always want to leave an out for this possibility.

I, for example, have no links to the security apparatus or the state – I am merely a private citizen. As a private citizen, however, I am terribly troubled by the facility with which new detention regimes are proposed when my visceral sense of the state is that it is abusive when in total control. I have no faith that sufficient controls will be put in place.

Best,
Ben

11.25.2008
at 11:35 am EST Benjamin Davis

I understand the effort to create an administrative detention space as the state asking that there be such a space because of its perceived security interests. I guess I keep pushing back on this because I wonder to what extent the effort at designing these spaces is an effort at legitimizing a space that has been fraught with difficulties and concerns. I guess I am putting forth the notion that it may be nice for the state to have these spaces expanded or have new spaces created, but how do I trust the state with this additional ability to do bad things to not only the dangerous but to the non-dangerous who happened to be swept up in the system. It is the concern maybe about the inability in the real world for the state to want to discriminate or even have the resources to discriminate. The “trust us – we are Americans” approach also will leave me cold given the cases recognized in America of bad treatment of persons in detention regimes (overcrowding etc). That is not letting anyone else off the hook in focusing on America.
Best,
Ben

11.25.2008
at 2:21 pm EST Benjamin Davis

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